Also speaking

This section initially seems bizarre to me, and Mr. Nicholson brought this up as well. Maybe it's appropriate for Mr. Gilmour to talk about the importance of continuity throughout the Criminal Code, of having similar language in drafting these types of amendments.

This would propose to add the concepts of age, sex, or mental or physical disability to what had been proposed originally in Bill C-305. It makes no reference to the concept of gender identity, but for a particular reason. This amendment would make the hate-motivating criteria in Bill C-305 consistent with the current hate-motivating criteria in the present definition of “identifiable group” for the hate propaganda offences in the Criminal Code.

All of these criteria are found in the hate sentencing provision of the Criminal Code as well. It would ensure that the list of factors is updated to reflect the hate-motivating factors that occur in the definition of “identifiable group” for the Criminal Code.

As has been mentioned, in Bill C-16, which is currently before the Senate, we propose to add the concepts of “gender identity” and “gender expression” both to the definition of “identifiable group” and to the hate crime sentencing provision in the Criminal Code.

I believe mention has been made of a motion for a coordinating amendment to ensure consistency, so that at all times the list of hate-motivated criteria for this expanded hate crime mischief offence—if that is the choice of the committee—would be identical with the list of hate-motivated criteria for the definition of “identifiable group”.

I have a question for Mr. Gilmour. My amendment NDP-3 made that specific reference to “gender identity, gender expression”, but it was voted down because that was going to be covered in the coordinating amendment. This particular amendment, LIB-1, includes those expanded references because of section 318, but doesn't include gender identity or expression. I'm just wondering, how do both NDP-3 and LIB-1 work with the coordinating amendment? Are they necessary, given the coordinating amendment?

I'll ask Mr. Gilmour. LIB-1 puts in all the criteria that are currently in section 318. The coordinating amendment would say that when Bill C-16 is adopted and this bill is adopted, then gender identity and gender expression will fall into this clause, in the way that Bill C-16 will already put them in section 318—and that's basically it. Until both bills are adopted, if this bill were somehow adopted first, gender identity and gender expression would not be there until Bill C-16 is adopted and receives royal assent. I don't know if Mr. Gilmour has anything to add on that.

That's essentially what would happen. The principle behind both this amendment and the coordinating amendment is that, at all times, there would be consistency with the definition of “identifiable group” as it exists in the Criminal Code, either as it currently is right now or as it may be amended by Bill C-16. Once, and if, Bill C-16 were passed, that would happen.

During the course of a lot of the testimony by witnesses during our consideration of the bill, there were references made on repeated occasions to the phrase “primarily used”. I want to move this particular amendment so that, for all of the four proposed paragraphs that describe property, it makes sure that the language “primarily used” is changed. I feel that language could limit the instances where hate-based mischief could take place. Through this amendment, I'm proposing to broaden the legislation a bit so we can catch areas in buildings or parts of buildings that are used for religious worship, or a meeting place that's associated with an identifiable group.

I'll just quote a few of the witnesses we heard.

Mr. Gilmour, in your previous testimony, you mentioned that the way the bill is currently worded, if someone went to a bar and mischief were committed against the bar because there were members of, say, the gay community inside, you didn't see, in the current reading of the bill, that being covered.

We had Mr. Gardee, the executive director of the National Council of Canadian Muslims, who said:

Even if a building is not primarily used...but used on an occasional basis, then there is an indication there that the crime was committed directly targeting a particular community. It would seem to make sense to look at that very seriously.

We had Mr. Mostyn, who said:

I had just suggested changing the wording from “primarily used for”, which are the three words that are in the paragraphs, and suggested an alternative description, because I don't think this is where you want to get really narrow. I think this is where you want to be broad.

...I think there are a lot of limitations when we include the word “primarily”, because that business might not have anything to do with our community other than that it is supportive and is indicating we are welcome, and yet it could be targeted just because it has that symbol there.

With that, Mr. Chair, because of the testimony that we heard, I feel it's important to move this particular amendment. I'd welcome comments and feedback.

I agree with my colleague here. I think the use of the word “primarily” is a problem in the present wording. I agree with my NDP friend that we should be more specific, in the sense that if it's used occasionally, if it's identifiable, then the word “primarily” is not necessary. That's what he is proposing in his four amended paragraphs in the bill. We support it.

I should have pointed out earlier that NDP-4 would cancel out LIB-2, because LIB-2 is amending the same lines. I just note that NDP-4, if adopted, no longer ties to a building used by an “identifiable group”, because it goes back to the wording of Bill C-305, unless it's amended. I'm just pointing that out.

Out of respect for the witness testimony, I think that the “primarily used” subsection is problematic. I go back to that example. If it's a business, a bar, or some kind of a building that's not listed within the definitions of Bill C-305 but is clearly identified with an identifiable group—they congregate there—it's known as an ally, and it's targeted specifically for that reason.

Are you saying it's more important to protect the building, or is our intention here to target the crime that's taking place? To me, it's the action, because it's targeting a building that is associated with a group. Whether it's a school or a business, the crime took place, the action took place because people knew it was associated with the LGBTQ community, or with a Jewish group, or with a Muslim group. That, for me, is the crux of the issue in this particular amendment.

structure, that is primarily used by an identifiable group as defined in subsection 318(4)

It then goes on to make further amendments.

I believe this accurately characterizes what I believe is the proper way to address the buildings, which is that they be for the primary use. It's the wording that's currently in the act now with regard to religious buildings—that the buildings be primarily used for that purpose. I believe this is a proper way to ensure that the buildings we're talking about for this higher threshold be identified and readily identifiable by the public as primarily used by the class, and for the reasons that make this a more serious situation with regard to the mischief.

I take the points made earlier by the members opposite, but reiterate the fact that this doesn't mean those types of activities would not warrant criminal sanction or would not be considered as being motivated by hate. That's not the issue here. The issue here is regarding the notoriety of the building to ensure that we are not making it overly broad. For that reason, I'm putting forward LIB-2.

For the record, I don't like either choice. The language without the word “primarily” is way too broad, and the language with “primarily” is kind of narrow. I think it's better to be a little conservative in this way.